Shelton v. Jay Hatfield Mobility, LLC
| Decision Date | 14 December 2012 |
| Docket Number | No. 106,394.,106,394. |
| Citation | 290 P.3d 685 |
| Parties | Shirley SHELTON, appellee, v. JAY HATFIELD MOBILITY, LLC, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Montgomery District Court; F. William Cullins, Judge.
Kevin D. Case and Patric S. Linden, of Case & Roberts P.C., of Kansas City, Missouri, for appellant.
W.J. Fitzpatrick, of Fitzpatrick & Bass, of Independence, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
Shirley Shelton filed a negligence action against Jay Hatfield Mobility, LLC, (JHM) after she was injured when her wheelchair rolled out of a JHM van operated by a JHM employee. A jury found that JHM was 62% at fault for the accident and apportioned the remaining 38% fault to Shelton. The jury determined Shelton's total damages to be $349,042.48, and consequently the trial court entered judgment against JHM in the amount of $216,406.34. JHM argues the court erred in giving or not giving several jury instructions, insufficient evidence existed to support the verdict based on those jury instructions, and the court erred in not allowing the jury to compare the fault of the home assistant present that day. We affirm in part, reverse in part, and remand.
JHM sells power scooters, mobility-equipped vans, and other equipment to customers who have physical mobility limitations. Linda Kennedy was employed by JHM as a mobility specialist at its Pittsburg, Kansas, facility, helping assess client's needs and determining what mobility equipment would be beneficial.
Shelton was born in 1937 and suffered from polio at an early age, but it mostly went into remission and settled in her right foot. She was able to function normally until about 1977 when the polio began to affect her back and she had to retire. In 2002, Shelton was living alone and her back was causing her more and more problems. She decided it was time to purchase a wheelchair. Shelton testified that at that time she was able to get in and out of the wheelchair and able to do most things including cook, go to the bathroom, and get in and out of bed.
In 2008, Shelton decided that she needed more help with her mobility than the manual wheelchair could provide. Her arms would get tired after pushing. She purchased a van equipped with an electric loading/unloading platform and vehicle controls that could all be done on the steering wheel. She did not purchase the van from JHM. However, Shelton contacted JHM about purchasing a motorized wheelchair and worked with Kennedy to determine what chair would best meet her needs. Shelton purchased the 600 Jazzy Power Wheelchair. Shelton also purchased an EZ Lock System for her new van so that she could drive the van without getting out of the powerchair.
Shelton testified that in order to qualify for Medicare to cover a portion of the cost of the wheel chair, she needed to have an examination by a doctor. Kennedy set up an appointment with Shelton's doctor and drove her to and from the appointment. Kennedy drove a JHM minivan to the appointment. Shelton was in her powerchair and was able to get in and out of the minivan by herself on a let-down ramp.
Kennedy also set up the appointment for Shelton to have the EZ Lock System installed in her van. Kennedy showed up on March 3, 2009, at 9 a.m. to take Shelton to Columbus, Kansas, for the EZ Lock installation. Rita Lashley, Shelton's home care assistant, was there, and Shelton testified that Kennedy said it was alright for Lashley to accompany them on the trip. Shelton testified that Lashley came along to find out how to snap the driver's seat in and out just in case she needed to drive in an emergency. Shelton understood that they would go and return from Columbus the same day, in her van, and that Kennedy never said otherwise. Shelton was in her powerchair, but they took her manual wheelchair along so she would have some place to sit during installation of the EZ Lock System. When they arrived at JHM in Columbus, Shelton was able to stand up and transfer from the powerchair to her manual wheelchair.
In Columbus, employees told Shelton that due to limited staff they would not be able to complete her EZ Lock System installation that day. Shelton's van and powerchair would have to stay at JHM. Shelton testified that Kennedy loaded her into a loaner van for the trip back home. Shelton testified that Kennedy only put two restraints on her manual wheelchair while they were in the loaner van and that she actually slid forward at one point when Kennedy unexpectedly took a corner at a high rate of speed.
When they arrived at Shelton's home, Kennedy stopped in the driveway. Lashley unlocked the back door, and Kennedy started getting ramps out. Lashley helped Kennedy set ramps from the garage floor to the platform in the garage. Lashley took both her and Shelton's belongings into the house. Shelton testified that Kennedy got back into the van and pulled forward a couple feet. Kennedy turned off the van and then turned around to release the restraints on Shelton's wheelchair. Shelton testified that Kennedy got out of the van and walked around the front to the passenger side. She opened the passenger side sliding door and then unfolded the ramp to the ground. Shelton testified that Kennedy started talking on the phone and walked around the front of the van again. Kennedy opened the driver's side sliding door and continued talking on the phone.
Shelton testified that she unlocked the brakes on her wheelchair and moved to about 6 inches from the ramp going out the passenger side sliding door. She was facing outside and spoke to Lashley who was squatting down by the front tire picking up sticks in the driveway. Shelton was expecting Kennedy to unload her. Shelton said she sat there with her hands in her lap for about 5 minutes.
Shelton testified that all of a sudden, it felt like someone pushed her wheelchair and she started down the ramp. She tried to stop the wheels with her hands but could not. At the end of the ramp, the footrest stuck in the ground, Shelton flipped in the air, and sge landed on her side with her arm underneath. Shelton said that when she looked back at the van, she saw Kennedy through the open sliding doors standing on the driver's side. Lashley called 911. Shelton testified that Kennedy only came to check on her after emergency personnel arrived but then never said anything to her.
Lashley provided home assistance for Shelton. She was employed by Windsor Home Health Care in conjunction with the Kansas Department on Aging. Lashley worked 12 hours a week—typically 6 hours each Monday and Friday. Lashley testified her job duties included cooking, cleaning, shopping, laundry, and small errands if needed. Lashley was not responsible for Shelton's health care and never took her out of the house. Lashley was not a nurse and had no nursing qualifications. Lashley testified that on the day of the trip to Columbus, she was not scheduled to work in Shelton's home. However, she wanted to learn how the EZ Lock pin worked and Shelton had promised to teach her how to crochet while they waited for the pin to be installed. Lashley testified that she had no responsibilities that day.
Lashley testified Shelton had only two restraints on her wheelchair on the trip back from Columbus. As for the critical timeframe in this case, Lashley stated she was cleaning sticks off the driveway when Shelton was injured. Lashley testified that after Shelton went down the ramp, Lashley turned around and saw Kennedy standing on the other side of the van in the driver's side sliding door. Lashley also testified that Kennedy said she would follow EMS to the hospital but that when the ambulance turned to go to the hospital, Kennedy turned the other way and that was the last they heard from her.
Marty Fry is Shelton's nephew. Fry was at Shelton's house on the day they left for Columbus. He said he initially thought that they would take the van to Columbus, put in the pin, and return home. However, he testified that Kennedy told him there was a possibility they might not get the van done, but that JHM had a handicapped accessible van they could use to bring Shelton back home. Kennedy said they had ramps to get Shelton from the garage into the house. Fry said he did not tell Shelton or Lashley about a possible change in plans. Fry testified that he told Kennedy to call for assistance when they got back home, but that Kennedy said she was a professional and had been doing this for a long time.
Kennedy testified that at their very first meeting, Shelton made it clear that she was an independent lady, wanted to do things for herself, and had taken care of herself for a long time. Kennedy agreed to pick up Shelton and take her to the JHM facility in Columbus. Kennedy offered Shelton a loaner powerchair if she needed it in Columbus, but she said Shelton wanted to take her manual wheelchair along. Kennedy confirmed that Shelton's manual wheelchair came loose on the way back home and that she just tightened the straps back up. Kennedy said there were four straps holding the wheelchair down.
Kennedy testified that all along the plan to install the EZ Lock System in Shelton's car was not a 1–day job. She testified that she had planned to take Shelton back to her home in the loaner van and then the service department would bring her van and powerchair back to her house the next day.
When they arrived back home, Kennedy said that Lashley offered to help Kennedy with the ramps to go in Shelton's garage. Kennedy testified that after they set the ramps, she walked back to the van, sat down in the driver's side sliding door, and then unhooked Shelton's restraint straps. She said that she saw Lashley bending down at the front of the van but did not know what she was doing. Kennedy testified that she backed away from the van, slammed the sliding door shut, and then started walking around the van. Kennedy heard Shelton scream. Kennedy testified that she ran around...
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